PRITZKER BRIEFS Pritzker Environmental Law and Policy Briefs

POLICY BRIEF NO. 5 | October 2013

Stemming the Tide of Plastic Marine Litter: A Global Action Agenda By Mark Gold, Katie Mika, Cara Horowitz, Megan Herzog, & Lara Leitner For these reasons, drastically reducing Marine litter is one of the Introduction the current rate of ocean plastics disposal most significant problems facing the world’s and loss is a key step in stemming the oceans and seas, and the communities tide of global marine litter. Over the last and economies that depend on them. decade, researchers and international, Plastic marine litter presents a particularly governmental, and non-profit organizations significant environmental threat—as well have published dozens of reports on the as a considerable regulatory challenge. It marine litter problem and offered a range has been estimated that 20 million tons of of recommendations.2 There is general plastic marine litter enter the ocean each agreement about the need for robust, year.1 Plastic marine litter forms a large consistent funding for clean-up efforts; portion of our waste stream, typically does better infrastructure to encourage proper not biodegrade in marine environments, waste management; and, most importantly, and has especially deleterious impacts on reductions in the sources of marine litter— ocean wildlife, coastal economies, fisheries, especially single-use plastics. Yet, no one and even human health. Manufacturers has proposed an overarching action plan increasingly are incorporating hardy plastic that would effectively address the plastic material into single-use items and other marine litter problem. products that are a part of our daily lives. Global mismanagement of ubiquitous Like the waste itself, however, awareness plastic materials has fueled the growing of the plastic marine litter problem is on international marine litter problem. the rise. International volunteer events

What is Plastic Marine Litter?

Marine litter, also called marine debris or solid marine pollution, includes all human- generated solid articles and materials that are discarded, disposed of, or lost into the ocean and remain there.

Plastic marine litter includes all marine litter composed of one of a collection of artificial materials (commonly, petroleum-based compounds) that we broadly refer to as “plastic” (e.g., polystyrene, polyethylene, polyester). Plastic marine litter includes consumer items such as plastic bags, food packaging, cups, bottles, and balloons; industrial components; and items related to fisheries or aquaculture.

Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

such as International Coastal Clean-Up to address plastic marine litter, including Day and images of the “Pacific Garbage suggestions of ways to improve existing Patch,” a gyre larger than the size of Texas international legal mechanisms. As a first that is polluted with a diffuse soup of plastic priority, we call upon the global community objects and fragments, have captured to develop a new international agreement the world’s attention. The international with a global reach commensurate with the community also is engaged in intently scale of the plastic marine litter problem. tracking the estimated five million metric Ultimately, we believe the world only may tons of marine litter (including plastics) be able to reach the Rio+20 goal through an swept out to sea by the Japanese tsunami aggressive, new international regime that in 2011.3 Significantly, last year’s “Rio+20” incorporates enforceable marine pollution United Nations Conference on Sustainable standards as well as strong tracking, Development recognized marine litter as a monitoring, reporting, and enforcement major environmental issue that the world mechanisms. International law is not likely must address. The parties to the Rio+20 to solve the plastic marine litter problem Conference “note[d] with concern that the independent of domestic efforts, however. health of oceans and marine biodiversity Smaller-scale policies and programs should are negatively affected by . . . marine debris, be scaled up rapidly as partial solutions especially plastic . . .” and called for action to the problem. We conclude with our by 2025 to “achieve significant reductions “Top Ten” list of recommended actions to in marine debris to prevent harm to coastal implement by 2025 to begin to stem the and marine environments.”4 How to achieve global tide of plastic marine litter. those reductions for the category of plastic marine litter is the subject of this policy brief. I. The Plastic Marine Litter Problem We begin by summarizing the latest In recent years, global concern about information on the sources and impacts of ocean health has keyed in on the growing plastic marine litter. Next, we describe why problem of plastic marine litter. There is existing international legal mechanisms are a lot we do not know about plastic marine inadequate to address the problem. We litter; for instance, there is no hard data on then offer international, regional, national, exactly how much plastic is in the marine and sub-national policy recommendations environment. It has been estimated that

Figure 1. Plastic litter and other trash on the coastline of Green Island, Kure Atoll, Hawaii (2006). Image courtesy of Claire Fackler, CINMS, NOAA/NOAA Photo Library.

www.law.ucla.edu/emmett 2 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 2. (Left) Plastic litters the Hong Kong shoreline after Typhoon Vicente knocked six shipping containers packed with bags containing millions of plastic pellets into the ocean. Image courtesy of Tracey Read and Gary Stokes, Oceanic Love. (Right) Grounding of the container ship Rena, which carried some containers of plastic beads, off the coast of New Zealand (October 2011). Image courtesy of New Zealand Defence Force.

20 million tons of plastic marine litter enter includes lost cargo containers. Hundreds or the ocean each year.5 We do know that, at perhaps thousands of shipping containers some locations, the majority of all observed and their contents, including plastics, are marine litter tends to be plastic items.6 lost at sea each year due to accidents, For instance, one beach litter monitoring storms, or poor management practices.13 pilot project found plastics to comprise an Notably, ships are not required to report or average of 75 percent of all beach litter clean up lost cargo unless the contents are on reference beaches in nine North-East hazardous. 7 Atlantic countries. Temporal trends also Once plastic litter enters the marine remain unclear; however, since plastics environment, the natural motion of wind and production increases by almost 5 percent 8 ocean currents pushes the litter around, annually, and because most plastics do sometimes over long distances,14 resulting not biodegrade in marine environments, it in greater concentrations of plastic in certain is likely that the concentration of plastics areas. For instance, plastic litter tends to in the ocean has been increasing and will 9 concentrate in the gyres, the five regions of continue to increase over time. the ocean where currents come together.15 Furthermore, it is not clear what proportion Alarmingly, plastic marine litter can be of plastic marine litter originates from found in ocean waters worldwide,16 as land-based versus ocean-based sources. well as in seafloor sediments17 and coastal Some estimates suggest that 60 to 80 sands.18 Litter may be found throughout the percent of plastic marine litter derives from ocean column both because plastics are land-based sources such as waste sites, manufactured at many different densities litter, untreated sewage and stormwater and because “biofouling,” the growth of outfalls, poorly managed industrial and marine organisms on floating plastics, can manufacturing sites, and tourist activities.10 cause the plastics to sink. Land-based plastic litter commonly found in Left in the marine environment, chemical the marine environment includes everything reactions combined with the motion of wind from single-use packaging to industrial and currents gradually break larger plastic “nurdles” (pre-production pellets). Ocean- items down into smaller particles.19 Most based sources such as ships, oil and gas 11 plastics never biodegrade in the ocean, platforms, and aquaculture facilities but rather continue to break down into tiny account for plastic marine litter items particles (i.e., particles smaller than 1 mm) such as fishing nets, floats, traps, pots, called secondary microplastics. Notably, and lines; bleach bottles; and aquaculture primary microplastics—plastic particles that components.12 Ocean-based litter also

www.law.ucla.edu/emmett 3 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 3. Propelled by the natural motion of the water and wind, plastics are concentrated in the regions of the ocean where currents come together to form gyres. Image courtesy of Claire Hermann.

Using Fulmars to Track Plastic Marine Litter35

Researchers frequently use a seabird called the fulmar to study and track plastic marine litter. Up to 95 percent of analyzed fulmars contain plastic in their stomachs. Seabirds like fulmars commonly ingest plastic they confuse with prey, or consume prey that has itself ingested plastic. The plastic found in fulmar stomachs provides some insight into regional and temporal trends in plastics composition. For example, while the typical amount of plastic in fulmar stomachs has remained roughly the same since the 1980s, the composition of plastic types has shifted over time from mostly industrial plastics (e.g., plastic pellets) to mostly consumer plastics (e.g., bottle caps). Fulmars also dem- onstrate some of the biological processes that transform and redistribute plastics; ful- mars break down ingested plastics in their stomachs and then excrete smaller plastics. Amazingly, it is estimated that fulmars annually reshape and redistribute 6 tons of plastic.

Given these characteristics, seabirds like fulmars show promise as an indicator to track the effectiveness of plastic marine litter policies. For instance, the OSPAR Commission, which implements the OSPAR Convention to Protect the Marine Environment of the North East Atlantic, uses Northern Fulmars to track regional efforts to reduce plastic marine litter. The Commission has set as a policy objective that no more than 10 percent of a certain category of fulmars should have more than 0.1 grams of plastic particles in their stomachs. Unfortunately, no area Figure 4. Fulmar (2008). Image courtesy in the North-East Atlantic currently of Lieutenant Elizabeth Crapo, NOAA Corps/ meets this objective. NOAA Photo Library.

www.law.ucla.edu/emmett 4 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 5. (Left) A Cusk eel hiding inside a plastic container off of Seal Beach, California. Image courtesy of Jeffery Ernst, Algalita Marine Research Institute. (Right) A crab entangled in a ghost fishing net in the coral reefs of the northwestern Hawaiian Islands (2005). Image courtesy of Susie Holst/NOAA/Marine Photobank.

are already tiny—also can enter the ocean. harm,30 such as reduced appetite, digestive Common sources of primary microplastics tract blockages, and internal injuries.31 include microplastic spills from industrial Although the full range of consequences processing sites or ships,20 facial scrubs of plastic ingestion for wildlife is not yet and cosmetic products containing plastic fully understood, studies have shown that microbeads,21 industrial spraying and plastic ingestion negatively impacts overall scrubbing of boat hulls,22 and plastic-based organism health and reproductive rates.32 clothing.23 Microplastics are ubiquitous in Smaller plastics increase the potential marine and coastal environments, and are a threat to the marine environment because a growing cause of environmental concern.24 wide range of organisms can ingest them in 33 Plastic marine litter has wide-ranging huge quantities. As an illustration, a recent adverse environmental, public health, and study estimated that a single population of fish in the North Pacific Subtropical Gyre economic impacts. Marine litter’s most 34 visible environmental impact is harming and consumed 12,000 to 24,000 tons of plastic. killing wildlife through entanglement and Plastic marine litter also could have ingestion.25 A 2012 study reported marine harmful chemical impacts on wildlife, litter impacts on 663 species, and more than ecosystems, and human health. We know half of impacted species ingested or were that plastics in the marine environment entangled by plastic.26 Entanglement can can absorb many contaminants already cause death by drowning or strangulation, present in seawater, including agricultural, inflict wounds, or result in other harm such industrial, and pest control chemicals a decreased ability to catch food or avoid such as polychlorinated biphenyls (PCBs), predators.27 Lost or abandoned fishing dichlorodiphenyltrichloroethane (DDT), and nets and lines adrift in the ocean can cover aqueous metals.36 These contaminants long distances and continue to entangle have been linked to disease, reproductive marine wildlife indiscriminately for years abnormalities, and other health impacts in in a process often referred to as “ghost wildlife as well as humans.37 Plastics can fishing.”28 contain up to 1 million times the concentration Organisms of all sizes, from small marine of PCBs as their surrounding waters, which potentially increases the exposure of marine invertebrates to whales, have been 38 observed to ingest plastics.29 Ingestion wildlife to these chemicals. can cause choking, starvation, and other Chemicals added to plastics as part of

www.law.ucla.edu/emmett 5 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 6. The digestive system contents, including plastic material, of a sea turtle in Green Fingal Beach, Australia (2007). Image courtesy of Lance Morgan, Australian Seabird Rescue/Marine Photobank.

the production process pose an additional Plastics also are a potential vector for concern.39 Additives such as bisphenol invasive species or other harmful species A (BPA), plasticizers (phthalates), and such as spores of harmful algal blooms.47 flame retardant chemicals (polybrominated Furthermore, plastic marine litter is diphenyl ethers, or PBDEs) are linked responsible for ocean collisions that have to endocrine disruption in wildlife and resulted in human injuries and deaths.48 40 humans. These additives can dissociate For all of these reasons and more, plastic from plastics in the environment and marine litter has significant economic contaminate seawater, or contaminate 41 impacts. Marine litter imposes costs on organisms that ingest plastic litter. Plastic industries, governments, and individuals ingestion by smaller organisms leads to a through cleanup activities,49 tourism losses, greater potential for bioaccumulation of damage to commercial and recreational contaminants, potentially impacting the 50 51 42 vessels, and lost fishing revenue. For entire food chain. While further research example, a recent report from the Asia is needed to determine the proportion of Pacific Economic Cooperation found that organismal chemical loads that stems from its member economies lost more than $1 plastics as well as what levels of these billion per year to marine litter impacts such chemicals pose a threat to humans, it is as clean-up and damage to vessels.52 A clear that an increasing amount of plastic recent study estimates that communities marine litter increases potential risks to 43 in Oregon, California, and Washington humans and wildlife. are spending 13 dollars per resident per Plastic marine litter also degrades marine year to combat and clean up trash, which habitats by introducing foreign substrates translates to an estimated annual combined and exotic organisms. For example, expenditure of $520 million.53 Smaller abandoned nets can strand onto sensitive plastics and microplastics can complicate coral reef habitats,44 and hard-surfaced the efficacy and increase the cost of cleanup shipping containers can land on the soft- efforts because they become thoroughly bottom seafloor and disrupt soft-bottom intermingled with beach sands and cannot populations.45 Plastic marine litter is even be removed effectively by traditional beach beginning to form its own habitat, the grooming techniques such as raking or “Plastisphere,” which supports communities sieving. of organisms that differ from those in 46 Plastic litter also is partially responsible for the surrounding ocean environment. substantial lost tourism revenue because

www.law.ucla.edu/emmett 6 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

tourists pay fewer visits to beaches heavily areas most plagued by litter often have very polluted by marine litter. Studies have little control over the production or disposal estimated that tourism on the Skagerrak of that litter. Sources of plastic litter are coast of Bohuslan in Sweden decreases spread across the globe, and, absent a by 1 to 5 percent as a result of beach coordinated international response, efforts litter, resulting in a calculated annual loss to restrict plastic production or disposal in of approximately 15 million British Pounds one area may be undermined by “leakage” ($23.4 million dollars).54 Additionally, of those sources to an unregulated area. communities incur costs due to loss of We surveyed multilateral environmental ecosystem services such as healthy instruments and institutions and assessed fisheries and the aesthetic appeal of clean their sufficiency to address the problem of beaches. Further research into quantifying plastic marine litter. Several international the economic benefits of healthy coastal agreements designed to address marine and ocean ecosystems would aid in the pollution are potentially relevant to reducing creation of cost-benefit analyses that plastic marine litter, including: the United accurately reflect the cost of environmental Nations Convention on the Law of the Sea degradation associated with plastic marine (UNCLOS), the International Convention litter. for the Prevention of Pollution From Ships (MARPOL), and the Convention on the II. The Limits of Existing Prevention of Marine Pollution by Dumping International Law in Addressing Wastes and Other Matter, also known as the London Dumping Convention. Some Plastic Marine Litter of the most promising regionally-focused agreements and directives include: the The problem of plastic marine litter has European Marine Strategy Framework obvious international dimensions. Plastic Directive, Barcelona Convention, Cartagena litter often affects the marine environment of Convention, Convention for the Protection the high seas outside the jurisdiction of any of the Marine Environment of the North East one nation or group of nations. Because Atlantic (OSPAR), and Helsinki Convention. wind and ocean currents can transport plastic marine litter over long distances, Though each of the international instruments

Figure 7. Ghost fishing gear stranded on a coral reef, Mariana Islands, Guam. Image courtesy of David Burdick/NOAA Photo Library.

www.law.ucla.edu/emmett 7 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

mentioned above is potentially helpful, A. Existing International Agreements collectively, their shortcomings make them unlikely to lead to significant reductions of Have Limited Jurisdiction over the plastic marine litter. Overall, as we discuss Main Sources of Plastic Pollution in further detail below, their insufficient scope with respect to the main sources of plastic Most troublingly, existing international pollution, lack of enforceable standards, and agreements largely neglect land-based insufficient penalties mean that no existing sources of plastics, which are estimated agreement comprehensively addresses the to be responsible for the majority of plastic problem of plastic marine litter. litter in oceans.69 The London Dumping Convention, for example, regulates only land-based waste loaded onto ships for

Table 1 | Selected International Instruments Relevant to Plastic Marine Litter

Agreement Scope of Regulation Enforcement & Dispute Resolution International Convention for Pollution and dumping from ships due the Prevention of Pollution 55 to operational losses or accidents. Flag state responsible for imposing fees from Ships (MARPOL) and fines. 56 Plastics disposed at sea; port MARPOL Annex V reception facilities. Members can settle disputes by any 58 peaceful means chosen by them; if no Prevention of pollution from ships; settlement is reached, compulsory UN Convention on the Law of land-based sources of pollution; 57 procedures available are (a) the the Sea (UNCLOS) dumping and pollution transfer from International Tribunal for the Law of the one nation to another. Sea; (b) the International Court of Justice; or (c) arbitral tribunals.59 London Dumping Land-based waste on ships for Each member regulates discharges of Convention60 deliberate at-sea disposal. waste on its own ships. Negotiated settlement preferred; if no Land- and ocean-based waste from agreement is reached, an arbitral tribunal 61 dumping, runoff, and discharges Barcelona Convention of three members elected by the parties (including plastics) in the or appointed by the UN Secretary- Mediterranean Sea region. General will be used. Pollution from ships; dumping at sea; United Nations, as secretariat, can Cartagena Convention62 land-based sources of pollution in the initiate limitations and deadlines; monitor Wider Caribbean Region. waste management infrastructure. All litter in European Union seas Members must implement cost-effective based on where it is found (e.g., European Marine Strategy programs in compliance with other sea 63 washed ashore, in water column, Framework Directive treaties by 2016 to achieve good ingested by marine animals) and type environmental status by 2020. (e.g., microplastics). Global Programme of Action for the Protection of the Land-based pollution from rivers, Non-binding framework provides Marine Environment from estuaries, and storm drains. guidance only. Land-Based Activities (GPA)64 European ship discharges; lost and Negotiated settlement preferred; if no Convention for the Protection discarded fisheries materials from agreement is reached, an arbitral tribunal of the Marine Environment of vessels; land-based wastes from of three members elected by the parties the North East Atlantic 65 coastal or riverine disposal; or appointed by the UN Secretary- (OSPAR) recreational littering. General will be used. Marine pollution from all sources Members must establish legislation for (including point-source or diffuse prevention and abatement of marine 66 inputs from all land-based sources; Helsinki Convention pollution; disputes should be submitted to pollution from tunnels or pipelines an arbitration tribunal or the International deliberately discharged into Court of Justice. waterways).

www.law.ucla.edu/emmett 8 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Soft Law versus Hard Law: Understanding International Agreements and Programs67

Generally speaking, international instruments addressing marine litter can be divided into two categories: soft law and hard law. Soft law describes non-binding arrangements between parties (e.g., the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities). Soft law agreements include regional strategic action plans, declarations, and resolutions adopted by conferences, intergovernmental organizations, and international institutions. In contrast, hard law describes legally-binding contracts, often called conventions, with compulsory requirements or legal operations (e.g., UNCLOS). Hard law agreements generally apply to a specific land area and jurisdictional area of the marine environment, as determined by parties. Hard law agreements often refer to a protocol that provides detailed information on legal standards the parties must meet. Protocols may address topics such as emergency plans, integrated coastal zone management, and regulation of land-based activities. Because protocols are legally- binding, they may require many years of negotiation to alter. Where marine litter falls under an existing protocol, the existing protocol can serve as a legally-binding foundation for the development of new action plans to address issues such as strategic monitoring and assessment of marine litter. Existing protocols also can support multiple annexes that provide additional detail about factors such as permitting, criteria to establish and address priority pollutants, and how to apply the protocol to a specific pollution source. Unfortunately, many hard law agreements and protocols are neither implemented nor enforced. Additionally, although annexes to protocols can be legally-binding, parties to a convention often are allowed to pick and choose which annexes they want to sign.

purposes of at-sea disposal.70 Those disposal of plastic resulting from damage to instruments that do speak to land-based the ship or its equipment.77 The U.S. Coast sources are largely non-binding or limited Guard’s interim rule implementing Annex V in scope.71 For instance, UNCLOS also exempts warships, naval auxiliary, and acknowledges the existence of land-based other state-operated ships from Annex V’s sources but simply requests that countries requirements, leaving navy ships and crew address the problem through domestic members free to discharge waste without means.72 restriction.78 Moreover, several parties to Furthermore, the various exemptions and MARPOL have not yet ratified Annex V. opt-out provisions in existing international In addition, even where an existing treaties perpetuate the problem of careless international treaty includes a clear handling of plastics at sea and further limit standard, jurisdictional limitations may inhibit the treaties’ effectiveness. No agreement enforcement. Generally, when a ship flying a covers all of the main sources of plastic foreign flag violates an existing international marine litter, and many agreements make treaty, only the foreign-flag state has express exemptions for major sources.73 jurisdiction to investigate the violation and For instance, UNCLOS does not penalize impose penalties.79 Sometimes, treaties ships for the “incidental” loss of otherwise- authorize coastal states to penalize foreign- prohibited waste.74 The London Dumping registered or -flagged vessels traveling in Convention does not regulate ship- the state’s territorial waters or exclusive generated waste and expressly permits economic zone (EEZ), which encompasses disposal “incidental to or derived from the waters within 200 nautical miles of the normal operation of vessels.”75 Annex V coast—but even those powers are limited. of MARPOL, which broadly prohibits the Under MARPOL, for example, coastal “discharge into the sea of all plastics,”76 states responding to alleged violations nonetheless exempts accidental loss or in their territorial waters or EEZ have few

www.law.ucla.edu/emmett 9 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

What is the Regional Seas Programme?68

The UN Environment Programme (UNEP) established its Regional Seas Programme in 1974 to foster the development of environmental management plans for water bodies shared by two or more countries. Today, more than 143 countries participate in one of 18 regional seas and partner programmes covering: the Antarctic, Arctic, Baltic Sea, Black Sea, Caspian Sea, Eastern Africa, East Asian Seas, Mediterranean, North- East Atlantic, North-East Pacific, North-West Pacific, Pacific, Red Sea & Gulf of Aden, ROPME Sea Area, South Asian Seas, South-East Pacific, Western Africa, and Wider Caribbean. The majority of the regional programmes are implemented by member states through action plans, which set forth the operative legal framework for the programme and a comprehensive environmental management strategy. Fourteen of the regional programmes have adopted legally-binding conventions detailing actions member states must take to implement those action plans (e.g., the Barcelona Convention and Cartagena Convention), and most of these conventions are supplemented by protocols addressing specific marine degradation concerns. Action plans and conventions are tailored to the particular environmental characteristics and restoration needs of the region. In comparison to broader international agreements, the regional programmes tend to address plastic pollution issues with less ambiguity by taking into account the ecological and economic climate of the region at issue. However, the potential of the Regional Seas Programme to stem the tide of plastic marine litter is limited. Currently, some regions of the world’s oceans are not covered by a regional programme (e.g., the South- East Atlantic). Also, as described above, some regional seas programmes have created more meaningful, enforceable standards than others. Even where a legally-binding convention exists, it is not always clear how an action plan relates to the convention or its protocol. Furthermore, the terms of regional conventions must be incorporated into a party’s domestic law in order for the party to enforce the agreement against violators. To date, no regional seas programme has been used in any significant way to enforce prohibitions on marine debris. And no regional seas programme currently provides for sanctions against violating parties. (Nonetheless, some countries are starting to publicize violations to gain public support for marine litter programs.)

avenues of recourse other than demanding B. Existing International information from the suspect vessel.80 If the suspect vessel does not supply the Agreements Lack Enforceable requested information, the coastal state Standards may physically inspect and prosecute a vessel only if it anticipates an imminent Another common problem with existing threat to the state’s coastline, which is agreements is their lack of enforceable a very high burden.81 Regional treaties standards.84 UNCLOS, for example, contain better enforcement mechanisms, requires only that nations “shall endeavor” but they typically apply only to the EEZ.82 to use the “best practical means” to reduce And while UNCLOS extends to the high marine pollution “in accordance with their seas and external waters, its enforceability capabilities.”85 Similarly, the Helsinki provisions apply only to willful dumping of Convention asks contracting parties to waste at sea.83 take “all appropriate” measures to prevent and eliminate pollution.86 OSPAR and the Cartagena Convention go further, instructing parties to take “all possible measures” to prevent and control pollution—a much stronger mandate, but one that obviously

www.law.ucla.edu/emmett 10 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

is still difficult to define and enforce.87 comprehensive. Annex V of MARPOL, Indeed, it is hard to know what the phrases for instance, requires vessels that are 400 “best practical means,” “all appropriate tons or more, or certified to carry 15 or measures,” or even “all possible measures” more passengers, to maintain a “Garbage require of countries with differing legal Record Book,”98 but it is challenging to verify systems, environmental circumstances, whether ships are truthful in their assertions and capacities. that they previously disposed of their waste at other incineration or port facility sites.99 C. Existing International Agreements Have Insufficient III. Recommendations Enforcement Mechanisms For the reasons described above and more, existing international legal mechanisms Penalties imposed under existing are inadequate to address the plastic international marine pollution treaties marine litter crisis fully. New international are often insufficient to deter unlawful legal mechanisms in tandem with regional, behavior. MARPOL, for example, does not national, and sub-national programs are require the imposition of specific penalties required to realize significant reductions in 88 for violations. Instead, the agreement plastic marine litter. We have examined instructs each party to establish its own current and historical efforts to address penalty framework through domestic plastic marine litter, including both domestic 89 enabling legislation. Where individual and international programs, in order to draw countries have constructed MARPOL lessons about which policy approaches are penalty schemes, the penalties are most likely to be successful. insufficient to deter violators. The United As a first priority, given that the scope of Figure 8. Plastic litter and other States has one of the strongest and most comprehensive domestic implementing existing international law fails to match the trash in Isla Taboga, Panama scale and severity of the plastic marine litter (2010). Image courtesy of J.M. laws under MARPOL: The Act to Prevent 90 problem, we urge the global community to van Coutren/Marine Photobank. Pollution from Ships. Yet, according to the U.S. Office of Accounting, as of 1995, develop a new multilateral agreement on the less than 10 percent of cases brought under scale and scope of the Montreal Protocol on MARPOL Annex V had resulted in penalties Substances that Deplete the Ozone Layer against the violating party.91 Most often, the (“Montreal Protocol”). This new agreement U.S. Coast Guard chose to settle MARPOL should incorporate enforceable marine violations with a warning, dismissal, or litter standards as well as strong tracking, referral of the case to the ship’s flag state.92 monitoring, reporting, and enforcement Those parties that were penalized were mechanisms, including adequate penalties fined an average of $6,200 per case, an and the establishment of jurisdiction for amount that is far too low to serve as an party dispute resolution at an international effective deterrent.93 tribunal. The difficulty of identifying ocean- Acknowledging the long and uncertain path based sources of illegal disposal further to a new agreement, we also recommend complicates enforcement.94 To enforce policy actions to extend the reach of existing obligations under UNCLOS, for example, a international law and improve enforcement state must witness a violator in the overt act of existing obligations. International law of illegally disposing waste or must acquire can be strengthened in important respects sufficient evidence to warrant investigation to better support individual states with of the suspect vessel.95 However, without the political will to tackle this problem tracking systems, it is extremely difficult aggressively; however, in our view, to link waste disposal to a particular international law is not likely to solve the ship.96 While some agreements require plastic marine litter problem independent vessel recordkeeping systems to assist in of domestic actions. Smaller-scale policies tracking illegal disposals, most do not.97 and programs should be scaled up rapidly The tracking systems that do exist are not at the regional, national, and local levels as partial solutions to the plastic marine

www.law.ucla.edu/emmett 11 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

litter problem. We list some of the most with the capacity and political will to initiate promising of these policies and programs the process toward a new agreement, below. immediate steps could include: A. Develop a New International • Convening an international body of scientific experts to publish periodic Agreement Targeted to the Plastic assessments of current knowledge Marine Litter Problem about the problem. • Ramping up international public Ultimately, the world may only be able education efforts. to reach the Rio+20 goal of “achiev[ing] significant reductions in marine debris • Convening international leadership to prevent harm to coastal and marine through the G8, G20, or the United environments” through an aggressive, new Nations to begin developing a legal international regime on the scale of and framework for a new agreement. with the efficacy of the Montreal Protocol. • Funding a data collection network to The new agreement should be based in gather better information about the the recognition that ill-managed plastic sources and effects of plastic marine litter is harmful to people, economies, and litter, including economic, human health, the environment. Additionally, the new and wildlife impacts and the efficacy of agreement should address all of the main abatement programs. (Given that the sources of plastic pollution, and strictly global scientific community already regulate disposal of plastic litter from both knows enough about the plastic marine ocean- and land-based sources, perhaps drawing from the land-based pollution standards of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities. The new agreement should incorporate strong tracking, monitoring, reporting, and enforcement mechanisms, including adequate penalties and establishment of party dispute resolution before an international tribunal. Taking cues from the success of the Montreal Protocol, and while recognizing the differences between this challenge and the one presented by ozone depletion, the new agreement should ban altogether the most common or damaging types of plastic marine litter (e.g., microbeads and fish-egg-sized nurdles), and support the development of and transition to product substitutes. For example, the new agreement could call for a phase-out of all plastics that are not recycled at a rate of 75 percent or higher by a certain date. The process of developing a new agreement and cultivating the political will to adopt it Figure 9. Abandoned ghost fishing likely would take years or decades. But nets are loaded onto the deck of the because a new agreement will become vessel CASITAS in the northwest increasingly necessary as the problem of Hawaiian Islands. Image courtesy of plastic marine litter worsens, we believe that Dr. Dwayne Meadows, NOAA/NMFS/ the world community must begin now to lay OPR/NOAA Photo Library. a framework for agreement. For countries

www.law.ucla.edu/emmett 12 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Could a Transboundary Adjudication Help Address the Plastic Marine Litter Crisis?

A state looking to take progressive action on the international stage to bring attention to the plastic marine litter crisis could seek redress for litter-related damages in the International Court of Justice, which increasingly is open to resolving transboundary environmental disputes.100 In general, the International Court of Justice would be more likely to hear a dispute where a regional seas programme addresses sources of plastic marine litter and grants the Court jurisdiction over resolution of regional disputes.101 To use a real-world example, Japan potentially could seek redress for the ecological and economic damage to areas on its west coast caused by plastic litter originating in the Republic of Korea. Korean plastic litter is known to impact Japanese shores based on the direction of the winds and currents between the two countries. Every winter, 20-liter plastic containers drift onto the Japanese coast, many with Korean lettering.102 Although this example potentially constitutes a case that Japan could take to the International Court of Justice, the two countries thus far have relied on bilateral compacts and diplomacy to address the issue. Japan and Korea are member states of the Northwest Pacific Action Plan (NOWPAP), a regional seas programme. One of the NOWPAP priorities is to prepare and implement a marine litter action plan.103

litter problem to take immediate action, • The parties to MARPOL should develop however, additional data collection stronger qualitative and quantitative should not be seen as a prerequisite for standards for port reception facilities, so a proactive policy response). that ships are more reliably and easily Ultimately, we hope that the community of able to discharge their waste at ports nations, with support from non-governmental worldwide. advocates, businesses, regional • The parties to MARPOL should clarify organizations, and local governments, and the circumstances in which loss of with better information about the plastic fishing gear is prohibited by defining in marine litter problem, will lead the way in Annex V when an “accidental loss” will negotiating a new agreement. be deemed to have occurred despite “all reasonable precautions.” B. Amend Existing International Law • Regional fisheries management to Narrow Exceptions and Improve organizations (RFMOs) should adopt management standards to minimize the Enforcement impacts of gear loss. Standards should Acknowledging the long and uncertain path address reducing gear; minimizing to a new agreement, we recommend in the gear loss; minimizing the impacts of near term that treaty parties amend existing lost gear; and improving gear marking, international legal obligations in useful, if tracking, and recovery. Certification incremental, ways. Small modifications and tracking programs for fishing and could help eliminate some of the gaps in aquaculture operations should require existing laws that have become apparent logs to track lost fishing gear; require through the last decade of monitoring. traceable tags on nets; and encourage Potential actions include the following: the use of more sustainable materials in aquaculture gear. • The parties to MARPOL should amend the current vessel size and tonnage • RFMOs should move toward the limitations in Annex V for requirements replacement of plastic and synthetic respecting placards, garbage gear with biodegradable nets and management plans, and garbage traps to minimize ghost fishing and record-keeping, so that fewer vessels entanglement. are exempted.

www.law.ucla.edu/emmett 13 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 10. A sample of litter from the garbage patch in the South Pacific subtropical gyre (2011). Image courtesy of Algalita Marine Research Institute.

• RFMOs should develop and incentivize C. Strengthen New and Existing gear-recovery programs that encourage fishing-for-gear programs. Regional Seas Programmes with In addition, we have identified several Substantive Requirements and New instances where current enforcement Research Programs mechanisms and penalty structures could be improved. In general, all international With the recognition that the UN Environment agreements with enforceable standards Programme (UNEP) is currently focusing relevant to plastic marine litter should on strengthening regional efforts rather require more thorough data collection than creating a new global agreement, we through mechanisms such as vessel- recommend that existing and new regional tracking databases, port incineration logs, seas programmes could be strengthened in and waste disposal logs. Collected data the following ways: should be made widely available online to • Agreements should cover inland the general public as well as treaty parties. activities throughout the entire Improved data collection and publication not watershed of the protected waterbody, only could improve enforcement of treaty not just specific areas such as coastlines obligations but also could enhance the or territorial seas. ability of states and advocates to pressure routine violators through public campaigns, • Marine litter should be included political dialogue, consumer boycotts, explicitly. transboundary lawsuits, and other means. • The scope of application should include Furthermore, we recommend imposing activities that generate plastic marine stiffer penalty schedules under MARPOL litter (e.g., river discharge, outfalls, and and all other agreements with enforceable watercourses) as well as its sources. standards. • Agreements should, to the extent possible, contain narrowly drafted language with timelines, enforcement, third-party assessment, and a funding mechanism. • Parties should outline clear procedures to assist countries with domesticating

www.law.ucla.edu/emmett 14 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

the international legal framework, should secure funding through UNEP or thereby increasing countries’ abilities to another international body to develop and enforce the agreement. Alternatively, a disseminate better information on plastic regional third-party organization should marine litter’s impacts to human health, be established and funded to ensure the economy, and the marine environment; compliance. better information on the origin and point-of- We also note that improved information sale of plastic marine litter around the world; about plastic marine litter could help and better guidance for states and other galvanize support for stronger policies and jurisdictions seeking to strengthen domestic help policymakers worldwide focus their approaches to the problem. efforts. For example, improved information D. Create an “Ocean Friendly” might empower developing countries to begin requiring importers of goods Certification Program packaged in plastic to fund a program for The primary focus of efforts to reduce properly handling that waste at the end of plastic marine litter should be decreasing its life. Requiring importers to contribute to the fraction of the estimated 265 million end-of-life reuse or recycling programs as tons of plastic generated annually that a condition of import would both provide ends up in the marine environment.104 a sorely needed funding source for clean- One way to reduce both the generation of up programs and incentivize importers to plastic and its improper disposal is to create minimize plastic imports. We recommend strong, consumer-driven incentives for that a research institution or non- corporations to align with plastic reduction governmental organization assess each of goals. Companies already are beginning the regional seas programmes to determine to react to an increased consumer interest where strengthened language could in sustainability through participation in improve enforcement of substantive marine- programs such as the Forest Sustainability litter standards. Additionally, such entities

“Ocean Friendly” Certification Requirements Could Include the Following Common-Sense Standards:

• Plastic products should be designed to minimize waste by ensuring that no loose plastic pieces can escape into the environment (e.g., beverage bottles should include a “lid leash” attaching lids to bottles, and juice boxes should eliminate separate straws). • New products should incorporate some minimum high percentage of recycled plastics. • The materials used to make disposable plastic products, particularly single-use products, should be standardized to encourage the use of materials that are easily recycled and have large markets (e.g., polyethylene terephthalate and high-density polyethylene, which have recycling codes 1 and 2, respectively). • Products and packaging should be labeled to allow for tracking, showing where products were both manufactured and sold. This critical information would allow policymakers and advocates to target education, publicity, or regulatory enforcement funds toward the highest volume contributors to plastic marine litter. • Because many varieties of biodegradable and oxy-degradable plastics do not degrade as easily in marine waters as they do in industrial composting or landfill conditions,105 plastics should only be labeled as biodegradable or compostable if they degrade completely and without adverse environmental impacts under normal environmental conditions in a short timeframe.

www.law.ucla.edu/emmett 15 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 11. Ghost fishing nets washed up on a beach in Hawaii. Image courtesy of Chris Pincetich/Marine Photobank.

Council, which promotes sustainable wood Inevitably, there will be some hurdles harvesting, and the Marine Stewardship to overcome in developing the “Ocean Council, which promotes sustainable fishing Friendly” certification program. For practices. Companies also are increasingly example, there is, as of yet, no complete incorporating recycled materials into their standard for the degradation of plastic products, then touting those products in a marine environment.106 Further, a as environmentally friendly through standard definition for bio-based plastic labeling. Additionally, some companies does not yet exist, nor are any of the and restaurants are beginning to offer currently available bio-based plastic biodegradable or compostable packaging alternatives fully sustainable.107 For these and take-out containers. Incentivizing reasons, consumers must be correctly and standardizing the production of more informed about the environmental impact sustainable products and packaging would of these alternative plastics as we try to aid and grow these nascent corporate find suitable replacements for the varied efforts, and would help an increasingly uses of plastics in our daily lives. Despite educated consumer population to make the current lack of a perfect replacement ocean-friendly choices. material, and even though no existing We propose the creation of a corporate standards or management tools are certification program aimed at reducing the sufficient to address the plastic marine amount of land-based plastic litter in our litter problem effectively, many existing oceans. The program should be open to programs incorporate valuable elements all plastic products commonly found in the that should be included and strengthened in marine environment but should impose an “Ocean Friendly” certification program. tough standards for labeling conforming For instance, the International Organization products as “Ocean Friendly.” To achieve for Standardization (ISO) recently certification, companies should satisfy released a suite of international standards requirements related to product design, related to product packaging, including manufacture, composition, labeling, and standards and measurement information life-cycle handling. for source reduction, reuse, recycling,

www.law.ucla.edu/emmett 16 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

energy recovery, chemical recovery, and profit organization, has developed a composting. However, the ISO standards sustainability-reporting framework with a do not define success or failure. The robust list of performance indicators that certification program we propose should could be modified to certify an ocean-safe incorporate and expand upon these ISO product.109 The Consumer Goods Forum, guidelines and other relevant standards to an industry network, has published a “global include assessment mechanisms to gauge language for packaging and sustainability” compliance and programmatic success, that includes packaging- and industry- as well as indicators, metrics, third-party specific metrics and goals.110 Another useful monitoring programs, and enforcement tool is the Plastics Scorecard, which rates mechanisms. a plastic’s environmental impact using a 111 Another promising model for the life-cycle analysis approach. Combining certification program is the Sustainable metrics from these voluntary frameworks Packaging Coalition’s Comparative and others could contribute to the creation Packaging Assessment (COMPASS), an of a robust, easily measurable program to internet-based design software program certify products as ocean-friendly. that combines life-cycle analysis and E. Improve Plastics Management regional solid waste modeling to address the most likely end-of-life scenarios in a Through Extended Producer given region.108 Incorporation of life-cycle Responsibility Programs and Requiring analysis into product design allows product developers to evaluate environmental costs Redemption Fees upon the Return of as well as economic factors. Our proposed Plastic Beverage Containers certification program could draw upon such models to help companies identify the least Extended Producer Responsibility (EPR) expensive supply chain changes required programs can play an important role in to reduce marine litter substantially and preventing land-based plastic pollution from quickly. entering the marine environment. EPR programs hold manufacturers responsible The “Ocean Friendly” certification for the handling of their products and program also could draw upon some of product packaging through the end of the voluntary corporate sustainability a product’s life. EPR programs also frameworks developed by non-profit and incorporate fee schemes to ensure that corporate organizations. For instance, manufacturers pay for waste management the Global Reporting Initiative, a non-

Figure 12. Deep-sea litter, including plastic beverage bottles, 20 km off the Mediterranean coast at a depth of 992 m. Image courtesy of Francois Galgani/Ifremer.

www.law.ucla.edu/emmett 17 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Principles for Effectively Harnessing EPR to Address Land-Based Sources of Plastic Marine Litter118

1) Extend producer responsibility to cover all primary sources of disposal, including street trash pickup, direct disposal by consumers, and disposal at stores.

2) Include measurable targets for “successful capture of material”—not just target recycling rates. 3) Impose a variable materials fee on top of poundage recycling fees to ensure that disposing of more environmentally harmful materials costs more. This materials fee should be steeply tiered to incentivize use of sustainable materials. 4) Separate recycling rates into subcategories (e.g., plastic, cardboard, etc.) so that high recovery rates for materials like cardboard do not mask low recovery rates for products that are highly impactful to the marine environment. 5) Develop product design and packaging criteria to discourage the use of virgin materials. 6) Include requirements for local reuse and recycling of collected products. Fund any relevant infrastructure through the EPR program.

at the end of their supply chain, and to States, but they could be improved and capture additional waste for recycling and more widely adopted globally. Current reuse. In general, a manufacturer’s fee rate redemption fees should be altered to better rises with the amount of waste generated; protect the environment by requiring the thus, EPR programs incentivize companies return of both bottle and cap, as bottle to reduce the amount of packaging on caps are among the most frequent types their products. Although fees typically only of waste found during beach cleanups amount to a price per unit that is similar to and are often discovered in the stomachs California’s bottle redemption value of 5 to of large sea birds such as albatrosses. 115 10 cents or less, EPR programs can result Bottle redemption fee models also could be in high overall recycling or reuse rates.112 extended to fishing nets, fishing lines, and Additional economic analysis is needed to aquaculture components to encourage the determine effective fee rates to incentivize return of these items to shore facilities for companies to reduce plastic packaging, proper disposal. minimize illegal dumping to avoid fee We recognize that EPR and recycling payments, and provide sufficient funding for redemption fee programs have their effective enforcement. limits. Even programs that achieve very Currently, EPR programs exist mainly in high recycling rates still fail to capture Europe and Canada.113 In the United States, a significant portion of potential marine a non-profit organization called Recycling pollution. For instance, even if 70 percent Reinvented is working to increase recycling of plastic waste was recycled worldwide— rates of waste packaging through an EPR an optimistic rate that has never been model.114 More jurisdictions should adopt achieved on a wide scale—that still would EPR programs to improve management of fail to account for about 80 million tons of land-based plastic pollution. plastic waste per year that could end up in 116 Another good way to boost recycling rates the marine environment. The good news is to provide a redemption fee upon the is that the options for reuse or transformation return of plastic beverage bottles and of traditionally non-recyclable plastics are cans to designated facilities for recycling. expanding. New technologies have the Many such programs exist in the United power to incentivize the collection of non- recyclable plastics by increasing their

www.law.ucla.edu/emmett 18 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

monetary value. For example, Korea located in and removed from the ocean now recycles its aquaculture floats into before they damage delicate habitats or combustible fuel rods, and Method soap contribute to ghost fishing. The certification brand is using collected marine litter to program also should mandate the use of manufacture some of its soap bottles. The sustainable aquaculture facility materials British company Cynar plans to open ten new such as the use of bamboo instead of fuel plants, each capable of transforming polyvinyl chloride (PVC) pipes, and the 20 tons of non-recyclable plastic trash into use of glass floats rather than expanded fuel per day.117 One advantage of EPR and polystyrene foam. Much like the “Ocean recycling redemption programs is that they Friendly” certification program that we provide a source of well-sorted plastics for propose above, this certification program innovative efforts like these. could expand upon existing standards, and establish measurable indicators and targets F. Target Policies to Ocean-Based to determine compliance. Sources of Plastic Marine Litter Additionally, we urge coastal jurisdictions to be mindful of well-intentioned recycling Ocean-based sources of plastic marine policies such as bans on plastic in landfills litter require specially targeted policies. that create a disposal problem for derelict In addition to the amendments to existing fishing nets. Jurisdictions with such policies international laws that we mentioned above, should amend them to ensure that vessels we support the creation of a certification can easily dispose of fishing nets on and tracking program for fishing ships and shore.119 aquaculture. This certification program should require the tracking of fishing gear G. Expand the Use of the Most in vessel logs to determine how much gear is “lost” overboard, with effective third-party Successful Domestic Management monitoring, assessment and penalties Models for any excessive losses. Fishing nets should be tagged so that they can be easily National, state, and local governments

Figure 13. (Left) Oyster aquaculture practices utilizing polystyrene foam. (Right) Polystyrene foam buoys used in oyster aquaculture off of the southern coast of the Korean Peninsula near the City of Busan. Images courtesy of Chulhoon Song, Korean Broadcasting System.

www.law.ucla.edu/emmett 19 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

What are Total Maximum Daily Loads (TMDLs)?

Under the Clean Water Act, states are required to establish water quality standards for each waterbody in the state. Water quality standards designate uses for the waterbody (e.g., recreation, public water supply, aquatic life) and set criteria necessary to protect those uses. Any waterbody that receives a pollution load that prevents the attainment of its water quality standards is listed as “impaired.” To address the impairment, regulators are required to develop Total Maximum Daily Loads (TMDLs), which specify the maxi- mum amount of a pollutant that the impaired waterbody can receive without violating its water quality standards.

around the world should ban the most resulted in litter reduction and healthier common and damaging types of plastic beaches and waterways.122 marine litter, such as microbeads, fish- In addition to banning common types of egg-sized nurdles, single-use plastic bags, plastic marine litter, United States coastal and polystyrene foam food packaging. jurisdictions should harness tools in the At least 37 countries, including Ireland, federal Clean Water Act to address plastic China, Bangladesh, and Ethiopia, and marine litter. Several U.S. local governments hundreds of state and local governments, have begun to use the Clean Water Act tool including Mexico City, Washington, D.C., of Total Maximum Daily Loads (TMDLs) and Delhi, have adopted single-use plastic to limit plastic and trash pollution. TMDLs bag or polystyrene foam restrictions with 120 for trash set a numeric goal for the amount extraordinary success. Examples of of trash (including plastic trash) in a trash- effective bag bans from jurisdictions around impaired waterbody by a certain date (e.g., the world demonstrate that such policies can zero trash by 2023). To achieve the TMDL, alter consumer behavior and meaningfully the local government must implement trash prevent plastic marine litter. For instance, reduction measures in the watershed. in the first year of implementation of China’s policy banning ultra-thin plastic bags and Cities in California and Maryland have led requiring retailers to charge consumers the way in developing TMDLs for California’s for thicker plastic bags, overall plastic bag Los Angeles River, Ballona Creek, and Santa use decreased by two-thirds, or 40 billion Monica Bay, and Maryland’s Anacostia bags.121 Similarly, a single-use plastic bag River. The Los Angeles-area TMDLs have ban in Los Angeles County, California has resulted in the installation of nearly 100,000

Figure 14. Litter, including plastic litter, covers the beach at the mouth of Ballona Creek in Southern California. Image courtesy of Heal the Bay.

www.law.ucla.edu/emmett 20 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

full capture devices, which filter litter 5 mm as well as the issue of legacy litter on river in diameter or greater out of stormwater bottoms or the ocean floor. runoff before it enters the waterbody. The California State Water Resources Control H. Expand Plastic Marine Litter Clean- Board is currently in the process of creating Up Programs a statewide trash policy that builds upon the innovative trash control measures of While there is certainly a need to continue local governments like Los Angeles. The researching the issue of plastic marine litter goal of the statewide policy is to target land to further understand the scale and scope uses that produce high volumes of trash of its impacts, we have enough information with control requirements ranging from full to know that we need to begin cleaning up capture systems to street-sweeping and existing plastic marine litter now. Clean-up educational campaigns. California will efforts should focus on all regions of the implement these requirements through the marine environment that are affected by National Pollutant Discharge Elimination plastic marine litter, including coastlines, System (NPDES) permits it issues under coral reefs, the seafloor, and the deep the Clean Water Act.123 ocean. Capturing plastic litter from the marine environment is a complex proposal, Regulators in coastal watersheds across given the costs of marine litter retrieval and the United States should develop similar the need for sufficient on-shore disposal TMDLs for plastic marine litter, using the sites. Despite these complexities, many programs in California and Maryland as excellent existing programs could be models. Coastal areas outside of the expanded and adapted. United States should use the TMDL system as a model for similar regulatory programs For instance, “Fishing for Litter” programs in their jurisdiction. Regulators adopting provide trash bags and easy on-shore similar programs should collect local data disposal options to incentivize fishermen in order to identify and target the greatest to properly dispose of litter captured in contributors to the pollution problem. fishing nets. Such programs also can Prioritizing high-use generators, such incentivize the return of plastic litter through as high-density urban developments or per-item or per-weight payments.125 Some industrial facilities with existing stormwater existing programs even have established permits, allows for a rapid initial decrease partnerships with local residents to in marine litter, after which a program can repurpose collected plastic marine litter then pursue smaller generators.124 In most into art, which serves to educate the public cases, TMDL programs should address about the plastic marine litter problem.126 floating litter, trash, and litter discharges, Additionally, derelict fishing gear removal projects, which encourage ocean users to recycle and report lost gear, have been successful in several regions of the United States. Since 2006, California’s Lost Fishing Gear Recovery Project has retrieved over 60 tons of gear from California’s coastal ocean and over 1,400 pounds of gear from public fishing piers.127 And since 2002, the Northwest Straits Derelict Fishing Gear Removal Program has removed 4,500 nets, 3,081 crab pots, and 47 shrimp pots from Puget Sound.128 Marine litter clean-up program managers Figure 15. Plastic bag floating in the should consider investing limited program water column in the Red Sea. Image funds into emerging technologies to Courtesy of Ben Mierement, NOAA increase the efficiency of clean-up NOS/NOAA Photo Library. activities. For example, overlaying maps

www.law.ucla.edu/emmett 21 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Figure 16. Plastic litter in Rome, Italy’s Tiber River heads out to see (2007). Image courtesy of Oceansart.us/Marine Photobank, http://www.OceansArt.us.

of marine debris concentrations and maps into municipal responsibilities in the same of marine animals could help identify ocean manner as park and street maintenance so areas that should be prioritized for clean-up that beach users can share clean-up costs. efforts. Additionally, plastics surveys could A problem on the scale of plastic marine litter be added onto planned marine organism cannot be tackled without viable, consistent studies; archived samples could be checked sources of funding for clean-up efforts. On a for plastic concentrations; old video and subnational or local scale, governments can photographic footage of the deep sea floor raise funds for marine litter clean-up efforts could be analyzed; and remote sensing through fees or taxes imposed on plastic could be employed to identify existing 129 products. Such fees should be designed plastic marine litter hotspots. Web- to reflect the product’s disposal and based forums where interested parties can environmental costs accurately. One local post and obtain information about plastic model that could be scaled up internationally marine debris, such as the NOAA Marine 130 is the City of Oakland’s litter tax on fast food Debris Clearing House, also can help establishments, the revenues of which fund researchers identify hotspots. clean-up programs.133 As another example, In addition to marine clean-up efforts, in 2010, Washington, D.C. instituted a 5-cent capturing litter at river mouths and on land in fee on disposable plastic bags, 1 cent of ocean-connected watersheds can prevent which is returned to the store while the other plastics from reaching the ocean.131 Through 4 cents fund environmental programs such one of the largest annual beach clean-up as Anacostia River clean-up efforts and events, International Coastal Clean-up education and outreach programs. This Day, nearly 9 million volunteers from 152 program generates around 2 million dollars countries have removed 145 million pounds per year and has resulted in a 60 percent of trash from shorelines over the past 25 reduction in bags in the Anacostia River.134 years. 132 Expansion of voluntary programs Yet another option is to impose a small like this to incorporate more regular clean- fee or tax on non-biodegradable plastics up events in urban watersheds would only, the revenues of which could be used decrease the amount of litter entering the to fund marine litter clean-up efforts. This marine environment and, more importantly, approach would encourage the use of ocean educate the populace to change harmful biodegradable plastics by making ocean waste disposal behaviors. It is also critical biodegradable plastics cost-competitive that cleaning up coastlines be incorporated with petroleum-based plastics.135

www.law.ucla.edu/emmett 22 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

On a larger scale, imposing a nominal fee education programs.140 Global educational on shipping containers exported through programs and programs targeting the port facilities would create a large fund fishing and aquaculture industries, however, for marine pollution clean-up programs. A must be greatly expanded and improved. 1-dollar fee per shipping container would Few examples of targeted educational be very small relative to the average value campaigns about the effect of derelict of the goods within the container, but could fishing gear exist, although programs generate substantial revenue for clean-up that encourage fishermen to capture and efforts. For instance, a one dollar per loaded return marine litter they encounter have container fee would have produced $4.1 provided some benefits. Similarly, targeted million of funding at the Port of Los Angeles educational programs centered on high-use in 2012 alone.136 Expanded internationally, areas such as ports, boat rental facilities, a one-dollar per loaded shipping container and boat launch ramps would help increase fee would generate $114 million annually for awareness of plastic marine litter among the top 20 importers of shipping containers, recreational and professional boaters. based on 2010 numbers.137 Conclusion Plastic marine litter is far I. Develop and Expand Education more than an aesthetic problem. Increasing and Awareness Programs harm to marine wildlife and rising economic costs provide an enormous incentive to Educational programs targeted to the tackle the global plastic marine litter problem global public, youth, boaters, civil society more aggressively. Although plastic organizations, religious groups, and the marine litter has grown into a high-profile plastic, fishing, and aquaculture industries international environmental issue over the are important parts of the plastic marine last two decades, efforts to address it so far litter solution. The extension of existing have not adequately protected water quality citywide anti-litter campaigns and local or the health of the marine environment. beach cleanups would contribute to raising Significantly, the many existing international public awareness of the plastic marine litter treaties relevant to plastic marine litter problem. Incorporating litter and marine lack the scope, standards, and penalties litter curricula into primary education also necessary to address the problem would help. Example curricula include the comprehensively. We suggest that attaining “Save Our Seas” and “Waves, Wetlands, the Rio+20 goal of “achiev[ing] significant and Watersheds” programs developed reductions in marine debris” by 2025 will 138 by the California Coastal Commission. require not one “silver bullet” action but Local events are another important vehicle rather a panoply of international, regional, to promote awareness of recycling and national, and local policies and programs. reducing; when events themselves are zero-waste, they both increase awareness Below, we have included a list of our Top and limit litter. 10 Plastic Pollution Prevention Actions. Implementation of all 10 measures by 2025 Industrial education efforts also have would drastically reduce the current rate of contributed to the growing global awareness ocean plastics disposal. Stemming the tide of the problem. One such example is of plastic pollution is a first and important the Society of Plastics Industry and the step, but additional efforts will be required American Plastics Council’s “Operation to address the millions of tons of plastic litter Clean Sweep,” which informs employees already present in the ocean. It is our hope at a plastic pellet manufacturing facility of that collaborative work toward reducing 139 the importance of preventing pellet loss. plastic marine litter disposal will lay a In 2011, plastics organizations signed a foundation for increased and continued declaration to address the problem of marine global cooperation on marine health issues. litter through a suite of actions including

www.law.ucla.edu/emmett 23 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Top 10 Plastic Marine Litter Prevention Actions

1) Develop a new international plastic marine litter treaty of the scale and scope of the Montreal Protocol. The agreement should incorporate enforceable marine litter standards as well as strong tracking, monitoring, reporting, and enforcement mechanisms, including adequate penalties and the establishment of jurisdiction for party dispute resolution before an international tribunal. 2) Through a new international treaty and regional and domestic action, ban the most common and damaging types of plastic marine litter (e.g., microbeads, fish- egg-sized nurdles, single-use plastic bags, and polystyrene foam food packaging), and phase out all plastics that are not recycled at a rate of 75 percent or more by a certain date. Support the development of and transition to substitutes. 3) Create and implement a voluntary “Ocean Friendly” certification program for all plastic products that commonly result in marine litter. The program should include common-sense certification standards for: minimum recycled plastic content; incorporation of easily-recyclable plastic; sustainable single-use packaging design; ocean plastic degradability; and phase-out particularly harmful manufacturing materials such as nurdles. 4) Expand Extended Producer Responsibility programs, with the stipulation that such programs must be designed to result in high recovery rates of plastics and the phase-out of environmentally harmful materials. 5) Expand and strengthen existing regional agreements and other international agreements relevant to plastic marine litter by incorporating enforceable marine litter standards, closing loopholes, strengthening penalties, and supporting improved enforcement. 6) Create and implement certification and tracking programs for fishing and aquaculture operations through regional fisheries management organizations and other relevant institutions. Programs should require logs to track lost fishing gear; require traceable tags on nets; and encourage the use of more sustainable materials in aquaculture gear. 7) Establish funding sources for marine litter remediation through product redemption fees and shipping container fees, such as a port fee of 1 dollar per shipping container. Impose fees or taxes on the most common types of plastic marine litter (e.g., single-use plastic bags, cigarettes, and expanded polystyrene foam). 8) Expand the use of “zero-trash” Total Maximum Daily Loads or similar requirements within urban coastal watersheds in the United States and internationally. Sources of marine litter should be identified and assigned a waste load allocation of zero trash to be achieved within a decade. 9) Accelerate efforts to clean up beaches and existing marine litter. Clean-up efforts should focus on plastic marine litter hotspots and all regions of the marine environment that are affected by plastic marine litter, including coastlines, coral reefs, the seafloor, and the deep ocean. 10) Improve our understanding of the plastic marine litter problem by funding research and data collection regarding the main sources of plastic marine litter; its effects on human health, the environment, and the economy; and the most effective means of control. Expand public education programs to raise awareness of the plastic marine litter crisis.

www.law.ucla.edu/emmett 24 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

Endnotes

1 Raveender Vannela, Are We “Digging Our Own Grave” Under the Oceans? Biosphere Level Effects and Global Policy Challenge from Plastic(s) in Oceans, 46(15) Envtl. Sci. & Tech. 7932, 7932 (2012), available at https://sustainability.water.ca.gov/ documents/18/3334111/Ocean+Pollution.pdf. 2 See, e.g., id; Chelsea M. Rochman et al., Comment, Classify Plastic Waste as Hazardous, 494 Nature 169 (2013); Nat’l Oceanic & Atmospheric Admin. [hereinafter NOAA] & U.N. Env’t Programme [hereinafter UNEP], The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris (2011), available at http://www.cep.unep.org/meetings-events/1st- lbs-stac/UNEP_NOAA%202012.pdf; Scientific & Technical Advisory Panel [hereinafter STAP], Global Env’t Facility, Marine Debris as a Global Environmental Problem: Introducing a Solutions Based Framework Focused on Plastic (2011), available at http://www.thegef.org/gef/sites/thegef.org/files/publication/STAP%20MarineDebris%20-%20website.pdf; UNEP Year Book 2011: Emerging Issues in Our Global Environment (2011), available at http://www.unep.org/yearbook/2011/; Hawaii Marine Debris Action Plan (2010), available at http://marinedebris.noaa.gov/projects/pdfs/himdap.pdf; Anthony Cheshire et al., UNEP/IOC Guidelines on Survey and Monitoring of Marine Litter (Regional Seas Reports and Studies No. 186, IOC Technical Series No. 83, 2009); Graeme Macfadyen, Tim Huntington, & Rod Cappell, Abandoned, Lost or Otherwise Discarded Fishing Gear (UNEP Regional Seas Reports and Studies No. 185, FAO Fisheries and Aquaculture Technical Paper No. 523, 2009), available at http://www.fao.org/docrep/011/i0620e/i0620e00.htm; Comm. on the Effectiveness of Int’l & Nat’l Measures to Prevent & Reduce Marine Debris & Its Impacts, Nat’l Research Council, Tackling Marine Debris in the 21st Century (2008), available at http://www. nap.edu/openbook.php?record_id=12486&page=1; Miriam Gordon, Cal. Coastal Comm’n, Eliminating Land-Based Discharges of Marine Debris in California: A Plan of Action from The Plastic Debris Project (2006), available at http://www.plasticdebris.org/ CA_Action_Plan_2006.pdf; J. Brown et al., Inst. for European Envtl. Pol’y & Poseidon Aquatic Resource Mgmt. Ltd., Ghost Fishing by Lost Fishing Gear (2005), available at http://ec.europa.eu/fisheries/documentation/studies/ghostfishing_en.pdf. 3 Japan Tsunami Debris FAQs, NOAA Marine Debris Prog., http://marinedebris.noaa.gov/tsunamidebris/faqs.html (last visited Sept. 26, 2013). 4 The Future We Want, Final Rep. of the U.N. Conf. on Sustainable Development, Rio de Janeiro, Brazil, June 20-22, 2012, ¶163. 5 Vannela, supra note 1, at 7932. 6 Charles Moore, Plastic Ocean: How a Sea Captain's Chance Discovery Launched a Determined Quest to Save the Oceans 285 (2011); Isaac R. Santos, Ana Cláudia Friedrich, & Juliana Ivar do Sul, Marine Debris Contamination Along Undeveloped Tropical Beaches from Northeast Brazil, 148 Envtl. Monitoring & Assessment 455 (2009); Juliana A. Ivar do Sul & Monica F. Costa, Marine Debris Review for Latin America and the Wider Caribbean Region: From the 1970s Until Now, and Where Do We Go from Here? 54 Marine Pollution Bulletin 1087 (2007); José G.B. Derraik, The Pollution of the Marine Environment by Plastic Debris: A Review, 44 Marine Pollution Bulletin 842 (2002). 7 OSPAR Comm’n, OSPAR Pilot Project on Monitoring Marine Beach Litter: Monitoring of Marine Litter in the OSPAR Region 9 (2007), available at http://qsr2010.ospar.org/media/assessments/p00306_Litter_Report.pdf. 8 Plastics Europe, Plastics—The Facts 2011: An Analysis of European Plastics Production, Demand and Recovery for 2010 5 (2011), available at http://www.plasticseurope.org/documents/document/20111107101127-final_pe_factsfigures_uk2011_lr_041111.pdf. 9 Anthony L. Andrady, Microplastics in the Marine Environment, 62(8) Marine Pollution Bulletin 1596, 1602 (2011). 10 Santos, Friedrich, & Ivar do Sul, supra note 6, at 461; Rho-Taek Jung et al., Practical Engineering Approaches and Infrastructure to Address the Problem of Marine Debris in Korea, 60 Marine Pollution Bulletin 1523, 1523 (2010). But see P. Zhou et al., The Abundance, Composition and Sources of Marine Debris in Coastal Seawaters or Beaches Around the Northern South China Sea (China), 62 Marine Pollution Bulletin 1998, 2000 (2011) (noting that the contribution of land-based sources can be higher, up to 95 percent). 11 Moore, supra note 6, at 56, 209. 12 Jung et al., supra note 10, at 1523. 13 See World Shipping Council, Containers Lost at Sea 1 (2011), available at http://www.worldshipping.org/industry-issues/safety/ Containers_Overboard__Final.pdf; Janice Podsada, Lost Sea Cargo: Beach Bounty or Junk?, Nat’l Geographic Daily News (June 19, 2001), http://news.nationalgeographic.com/news/2001/06/0619_seacargo.html. 14 See e.g., Monica F. Costa et al., On the Importance of Size of Plastic Fragments and Pellets on the Strandline: A Snapshot of a Brazilian Beach, 168 Envtl. Monitoring & Assessment 299, 302 (2010) (describing how plastic pre-production pellets known as nurdles are found even at beaches with no local sources). 15 See Moore, supra note 6, at 54; Marine Debris: Sources, Impacts, and Solutions 24 (James M. Coe & Donald B. Rogers eds., 1997); Kara Lavender Law et al., Plastic Accumulation in the North Atlantic Subtropical Gyre, 329 Science 1185 (2010). 16 STAP, supra note 2, at 5. 17 B.S. Galil, A. Golik, & M. Turkay, Litter at the Bottom of the Sea: A Sea Bed Survey in the Eastern Mediterranean, 30 Marine Pollution Bulletin 22 (1995); F. Galgani et al., Litter on the Sea Floor Along European Coasts, 40 Marine Pollution Bulletin 516 (2000).

www.law.ucla.edu/emmett 25 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

18 Mark A. Browne et al., Accumulation of Microplastic on Shorelines Worldwide: Sources and Sinks, 45 Envtl. Sci. & Tech. 9175 (2011); K.J. McDermid & T.L. McMullen, Quantitative Analysis of Small-Plastic Debris on Beaches in the Hawaiian Archipelago, 48 Marine Pollution Bulletin 790 (2004). 19 Matthew Cole et al., Microplastics as Contaminants in the Marine Environment: A Review, 62 Marine Pollution Bulletin 2588, 2589-90 (2011); Richard Thompson et al., Lost at Sea: Where is All the Plastic?, 304 Science 838, 838 (2004); Murray R. Gregory & Anthony L. Andrady, Plastics in the Marine Environment, in Plastics and the Environment 379, 389-90 (Anthony L. Andrady ed., 2003). 20 Cole et al., supra note 19, at 2590-91; What’s Plastic Resin Pellet?, Int’l Pellet Watch, http://www.pelletwatch.org/en/what.html. 21 Lisa S. Fendall & Mary A. Sewell, Contributing to Marine Pollution by Washing Your Face: Microplastics in Facial Cleansers, 58 Marine Pollution Bulletin 1225 (2009). 22 David K. A. Barnes et al., Accumulation and Fragmentation of Plastic Debris in Global Environments, 364 Philosophical Transactions of the Royal Soc’y B 1985, 1994 (2009). 23 See Browne et al., supra note 18. 24 Costa et al., supra note 14, at 301, 303; Browne et al., supra note 18; Amandine Collignon et al., Neustonic Microplastic and Zooplankton in the North Western Mediterranean Sea, 64 Marine Pollution Bulletin 861, 861 (2012); Juliana A. Ivar do Sul, Angela Spengler, & Monica F.Costa, Here, There, and Everywhere: Small Plastic Fragments and Pellets on Beaches of Fernando de Noronha (Equatorial Western Atlantic), 58 Marine Pollution Bulletin 1236 (2009); Mark A. Browne, Tamara Galloway, & Richard Thompson, Microplastic—An Emerging Contaminant of Potential Concern?, 3 Integrated Envtl. Assessment & Mgmt. 559 (2007). 25 See generally MBARI videos, Trash in the Deep Sea: Bringing a Hidden Problem to Light, YouTube (June 5, 2013), http://www. youtube.com/watch?feature=player_embedded&v=mOZngsJU2k0. 26 Secretariat of the Convention on Biological Diversity, Impacts of Marine Debris on Biodiversity: Current Status and Potential Solutions (CBD Technical Series No. 67, 2012), available at http://www.cbd.int/doc/publications/cbd-ts-67-en.pdf. 27 Derraik, supra note 6, at 847 (discussing several studies examining the detrimental effects of entanglement). 28 Moore, supra note 6, at 200. 29 Id. at 222-23; Thompson et al., supra note 19, at 838; Mark A. Browne et al., Ingested Microscopic Plastic Translocates to the Circulatory System of the Mussel, Mytilus edulis (L.), 42 Envtl. Sci. & Tech. 5026 (2008). 30 Videotape from Charlie Moore on file with authors. See also Christiana M. Boerger et al., Plastic Ingestion by Planktivorous Fishes in the North Pacific Central Gyre, 60 Marine Pollution Bulletin 2275, 2277 (2010) (noting that, among other harms, plastic ingestion could increase fish buoyancy, making it more difficult for fish to descend to deeper waters). 31 Sci. for Env’t Pol’y, Plastic Waste: Ecological and Human Health Impacts 17 (2011), available at http://ec.europa.eu/environment/ integration/research/newsalert/pdf/IR1.pdf. 32 Jorg Oehlmann et al., A Critical Analysis of the Biological Impacts of Plasticizers on Wildlife, 364 Philosophical Transactions of the Royal Soc’y B, 2047 (2009). 33 Thompson et al., supra note 19, at 838; Boerger et al., supra note 30; Collignon, supra note 24; Peter Davison & Rebecca G. Asch, Plastic Ingestion by Mesopelagic Fishes in the North Pacific Subtropical Gyre, 432 Marine Ecology Progress Series 173 (2011). See also C.J. Moore et al., A Comparison of Plastic and Plankton in the North Pacific Central Gyre, 40 Marine Pollution Bulletin 83 (2001) (stating that filter feeder organisms, which form the base of the ocean food chain, could mistake microplastics for food). 34 See generally Davison & Asch, supra note 33. 35 See generally OSPAR Comm’n, Litter in the Marine Environment – Plastic Particles in Fulmar Stomachs (2013), available at http://www.ospar.org/html_documents/ospar/html/data/assessment_fact_sheets/ospar_assessment_sheet_fulmar_2013.pdf; Jan A. van Franeker & SNS Fulmar Study Grp., IMARES Rpt. No. C037/11, Fulmar Litter Ecoqo Monitoring Along Dutch and North Sea Coasts in Relation to EU Directive 2000/59/EC on Port Reception Facilities: Results to 2009 (2011), available at http://edepot.wur.nl/173625; Jan A. van Franeker et al., Monitoring Plastic Ingestion by the Northern Fulmar Fulmarus glacialis in the North Sea, 159(10) Envtl. Pollution 2609 (2011); Abstract, Jan A. van Franeker, Reshape and Relocate: Seabirds as Transformers and Transporters of Microplastics, in NOAA Technical Memo. NOS-OR&R-38, Technical Proceedings of the Fifth International Marine Debris Conference, March 20-25, 2011 313, 313-315 (Ben Carswell, Kris McElwee, & Sarah Morison eds., 2011) [hereinafter Tech. Proceedings of the Fifth Int’l Marine Debris Conf.]; Abstract, Jan A. van Franeker, A Standard Protocol for Monitoring Marine Debris Using Seabird Stomach Contents: The Fulmar EcoQO Approach from the North Sea, in Tech. Proceedings of the Fifth Int’l Marine Debris Conf. 162, 162-65; Abstract, Jan A. van Franeker, Chemicals in Marine Plastics and Potential Risks for a Seabird Like the Northern Fulmar (Fulmarus glacialis), in Tech. Proceedings of the Fifth Int’l Marine Debris Conf. 440, 440-43. 36 Yukie Mato et al., Plastic Resin Pellets as a Transport Medium of Toxic Chemicals in the Marine Environment, 35 Envtl. Sci. & Tech. 318 (2001).

www.law.ucla.edu/emmett 26 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

37 Charlotte Stevenson, Univ. of So. Cal. Sea Grant, Plastic Debris in the California Marine Ecosystem: A Summary of Current Research, Solutions, Strategies, and Data Gaps 23 (2011), available at http://calost.org/pdf/science-initiatives/marine%20debris/ Plastic%20Report_10-4-11.pdf. 38 Marine Debris Impacts, U.S. Envtl. Prot. Agency, http://water.epa.gov/type/oceb/marinedebris/md_impacts.cfm (last visited Sept. 18, 2013); see also U.S. Envtl. Prot. Agency, Marine Debris in the North Pacific – A Summary of Existing Information and Identification of Data Gaps 9 (2011), available at http://www.epa.gov/region9/marine-debris/pdf/MarineDebris-NPacFinalAprvd. pdf. 39 R.E. Engler, The Complex Interaction Between Marine Debris and Toxic Chemicals in the Ocean, 46 Envtl. Sci. & Tech. 12302 (2012). 40 Stevenson, supra note 37, at 24; Chris E. Talsness et al., Components of Plastic: Experimental Studies in Animals and Relevance for Human Health, 364 Philosophical Transactions of the Royal Soc’y B 2079 (2009). 41 Moore, supra note 6, at 254, 268. See Hideshige Takada, Microplastics and the Threat to Our Seafood, Ocean Health Index News (May 10 2013), http://www.oceanhealthindex.org/News/Microplastics (describing a recent study determining that two types of flame retardant chemicals found in seabirds likely originated in ingested plastics). 42 Moore, supra note 6, at 85, 185-86, 252-53. See also Joint Grp. of Experts on the Scientific Aspect of Marine Envtl. Prot. [GESAMP], GESAMP Rpts. & Studies No. 82, Proceedings of the GESAMP International Workshop on Microplastic Particles as a Vector in Transporting Persistent, Bio-Accumulating and Toxic Substances in the Ocean 18 (Tim Bowmer & Peter Kershaw eds., 2010) (suggesting that wildlife ingestion of microplastics could lead to greater contaminant exchange because microplastics have a high surface-area-to-volume ratio). 43 Engler, supra note 39; Talsness, supra note 40; Sci. for Env’t Pol’y, supra note 31, at 20-21. 44 Moore, supra note 6, at 206; NOAA & UNEP, supra note 2, at 6. 45 NOAA & UNEP, supra note 2, at 6. 46 Erik R. Zettler, Tracy J. Mincer, & Linda A. Amaral-Zettler, Life in the “Plastisphere”: Microbial Communities on Plastic Marine Debris, 47(13) Envtl. Sci. Tech. 7137 (2013). See also Miriam C. Goldstein, Marci Rosenberg, & Lanna Cheng, Increased Oceanic Microplastic Debris Enhances Oviposition in an Endemic Pelagic Insect, 8 Biol. Letters 817 (2012) (finding that increasing microplastic concentrations over the last 40 years in the North Pacific Subtropical Gyre has increased available habitat in the water for a species of pelagic insect to lay eggs and resulted in increased egg density). 47 Mercedes Maso et al., Drifting Plastic Debris as a Potential Vector for Dispersing Harmful Algal Bloom (HAB) Species, 67(1) Scientia Marina 107 (2003). See also GESAMP Working Group 40, Sources, Fate and Effects of Micro-plastics in the Marine Environment – A Global Assessment 17 (P.J. Kershaw & H. Leslie eds., 2012) (noting that microplastic is an emerging issue in need of study, particularly with regard to its abilities to serve as new habitat for alien species, and transport exotic diseases and anthropogenic chemical compounds). 48 Id.; Moore, supra note 6, at 205. 49 Dong-Oh Cho, The Incentive Program for Fishermen to Collect Marine Debris in Korea, 58 Marine Pollution Bulletin 415, 415- 16 (2009); Dong-Oh Cho, Challenges to Marine Debris Management in Korea, 33 Coastal Mgmt. 389, 392-94 (2005). See generally John Mouat, Rebeca Lopez Lozano, & Hannah Bateson, Economic Impacts of Marine Litter (2010), available at http://www. kimointernational.org. 50 Moore, supra note 6, at 207, 321; Suichi Takehama, Fishing Ground Envt. Conservation Div., Jap. Fisheries Agency, Estimation of Damages to Fishing Vessels Caused by Marine Debris, Based on Insurance Statistics (1990); Alistair McIlgorm, Harry F. Campbell, & Michael J. Rule, The Economic Cost and Control of Marine Debris Damage in the Asia-Pacific Region, 54 Ocean & Coastal Mgmt. 643, 644 (2011). 51 UNEP Year Book 2011: Emerging Issues in Our Global Environment, supra note 2, at 28 (reporting that marine litter costs the Scottish fishing industry between $15 million and $17 million annually, which represents 5 percent of total revenue). 52 A. McIlgorm, H.F. Campbell, & M.J. Rule, The Economic Cost and Control of Marine Debris Damage in the Asia-Pacific Region, 54 Ocean & Coastal Mgmt. 643, 647 (2011). 53 B.H. Stickel, A. Jahn, & W. Kier, Kier Associates, The Cost to West Coast Communities of Dealing with Trash, Reducing Marine Debris 1 (2012), available at http://www.epa.gov/region9/marine-debris/pdf/WestCoastCommsCost-MngMarineDebris.pdf. See also Mouat, Lopez Lozano, & Bateson, supra note 49, at 39-40 (noting that, in some United Kingdom municipalities, the inflation-adjusted cost of cleaning up marine litter has increased 38 percent over the past 10 years, and that United Kingdom municipalities now spend an estimated combined $23.6 million annually to clean up marine litter). 54 U.K. Marine Pollution Monitoring Mgmt. Grp., The Impacts of Marine Litter 16 (Tim Fanshawe & Mark Everard eds., 2002), available at http://www.scotland.gov.uk/Uploads/Documents/Impacts%20of%20Marine%20Litter.pdf. 55 International Convention for the Prevention of Pollution from Ships, 1973, Nov. 2, 1973, 12 I.L.M. 1319, as amended by Protocol, Feb. 17, 1978, 17 I.L.M. 546.

www.law.ucla.edu/emmett 27 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

56 Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, Feb. 17, 1978, 94 Stat. 2297, 1340 U.N.T.S. 22484, as amended by Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, July 15, 2011 (entered into force Jan. 1, 2013) [hereinafter, MARPOL Annex V]. 57 U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261. 58 Id. art. 211. 59 Id. pt. XV. 60 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120, 11 I.L.M. 1291. 61 Convention for the Protection of the Mediterranean Sea Against Pollution, Feb. 16, 1976, 15 I.L.M. 285, revised as Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, June 10, 1995, 1102 U.N.T.S. 27 (entered into force July 9, 2004). 62 Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region, Mar. 24, 1983, 1506 U.N.T.S. 157, 22 I.L.M. 221. 63 Directive 2008/56/EC, of the European Parliament and of the Council Establishing a Framework for Community Action in the Field of Marine Environmental Policy (Marine Strategy Framework Directive), 2008 O.J. (L 164). See generally Ángel Borja, The New European Marine Strategy Directive: Difficulties, Opportunities, and Challenges, 52 Marine Pollution Bulletin 239 (2006). 64 UNEP, Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, U.N. Doc. UNEP(OCA)/LBA/IG.2/7 (Dec. 5, 1995), available at http://coralreef.noaa.gov/threats/pollution/resources/unep_lbsp_prgrm.pdf. 65 Convention for the Protection of the Marine Environment of the North East Atlantic, Sept. 22, 1993, 2354 U.N.T.S. 67, 32 I.L.M. 1069. 66 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992, Apr. 9, 1992, 1507 U.N.T.S. 167, 13 I.L.M. 546 (entered into force Jan. 17, 2000). 67 See generally UNEP, Implementation of the GPA at Regional Level: The Role of Regional Seas Conventions and Their Protocols (2006), available at http://www.unep.org/publications/search/pub_details_s.asp?ID=3929. 68 See generally id.; Matthew Schroeder, Forgotten at Sea – An International Call to Combat Islands of Plastic Waste in the Pacific Ocean, 16 Sw. J. Int'l L. 265, 282, 284 (2010); P. Akiwumi & T. Melvasalo, UNEP’s Regional Seas Programme: Approach, Experience and Future Plans, 22(3) Marine Pol’y 229 (1998); Background, UNEP Regional Seas Programme, http://www.unep. org/regionalseas/about/background/default.asp (last visited Oct. 8, 2013); Regional Seas Conventions, UNEP Regional Seas Programme, http://www.unep.org/regionalseas/programmes/conventions/default.asp (last visited Oct. 8, 2013). 69 Id. at 473; Derraik, supra note 6, at 848. 70 See Yale Lewis, Cargo Residues & Cargo-Associated Garbage: Are They Regulated by the Ocean Dumping Act or the Act to Prevent Pollution from Ships?, 14 U.S.F. Mar. L.J. 269, 274-75 (2002). 71 See Schroeder, supra note 68, at 276. 72 U.N. Convention on the Law of the Sea, supra note 57, at art. 207 (concerning pollution from land-based sources). 73 See Paul E. Hagen, The International Community Confronts Plastics Pollution from Ships: MARPOL Annex V and the Problem That Won't Go Away, 5 Am. U.J. Int’l L. & Pol’y 476, 447, 491 (1990). 74 Id. 75 Lewis, supra note 70, at 274-75. See also Hagen, supra note 73, at 445. 76 MARPOL Annex V, supra note 56, reg. 3(2). 77 Id. reg. 7(1). 78 78 Fed. Reg. § 151.51(b) (Feb. 28, 2013). 79 See generally Jeffrey S. Dehner, Vessel-Source Pollution and Public Vessels: Sovereign Immunity v. Compliance, Implications for International Environmental Law, 9 Emory Int'l L. Rev. 507 (1995). 80 Hagen, supra note 73, at 426. 81 Id. 82 See id. at 466. 83 Ted L. McDorman, Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention, 28 J. Mar. L. & Com. 305, 307 (1997). 84 Dehner, supra note 79, at 535. 85 Id. 86 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992, art. 3, Apr. 9, 1992, 1507 U.N.T.S. 167, 13 I.L.M. 546 (entered into force Jan. 17, 2000).

www.law.ucla.edu/emmett 28 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

87 David Johnson, Environmental Indicators: Their Utility in Meeting the OSPAR Convention’s Regulatory Needs, 65(8) J. Marine Sci. 1387, 1388, 1390 (2008). 88 See Dehner, supra note 79, at 541. 89 Holly R. Koehler et al., Legal Instruments for the Prevention and Management of Disposal and Loss of Fishing Gear at Sea, available at http://hawaiihumpbackwhale.noaa.gov/graphics/special_offerings/Issue_Paper_1.pdf. See also Dehner, supra note 78, at 537. 90 See Lewis, supra note 70, at 291. 91 U.S. Gen. Accounting Off., Enforcement under MARPOL V Convention on Pollution Expanded, Although Problems Remain 5 (1995). 92 Id. at 6. 93 Id. 94 See Schroeder, supra note 68, at 275 95 Id. 96 See Hagen, supra note 73, at 475. 97 See Dehner, supra note 79, at 545. 98 MARPOL Annex V, supra note 56, reg. 10. 99 See Dehner, supra note 79, at 545; Schroeder, supra note 68, at 274. 100 See, e.g., Aerial Herbicide Spraying (Ecuador v. Colom.), 2008 I.C.J. 174 (May 30). 101 How the Court Works, Int’l Court of Justice, http://www.icj-cij.org/court/index.php?p1=1&p2=6 (last visited Sept. 25, 2013). 102 Yuji Adachi, Jap. Ministry of the Env’t, Overview of Marine Litter Problems and Measures in Japan (2006), available at http://www. unep.org/regionalseas/marinelitter/publications/workshops/nowpap/0072.asp. 103 Northwest Pacific, UNEP Regional Seas Programme, http://www.unep.org/regionalseas/programmes/unpro/nwpacific/default.asp (last visited Oct. 8, 2013). 104 Plastics Europe, supra note 8, at 5. 105 See generally J.H. Song et al., Biodegradable and Compostable Alternatives to Conventional Plastics, 364 Philosophical Transactions of Royal Soc’y B 2127 (2009); Jun Xu & Bao-Hua Guo, Poly(butylene succinate) and Its Copolymers: Research, Development and Industrialization, 5 Biotechnology J. 1149 (2010). 106 ASTM International released the first attempt at such a standard, but the standard does not require the measurement of chemicals released by the process of plastic degradation or an assessment of whether the plastic has fully degraded to organic components versus merely decreasing in size. See ASTM D6691-09, ASTM Int’l, http://www.astm.org/Standards/D6691.htm (last visited Oct. 1, 2013). 107 See generally Clara Rosalía Álvarez-Chávez et al., Sustainability of Bio-Based Plastics: General Comparative Analysis and Recommendations for Improvement, 23(1) J. Cleaner Prod. 47(2012). 108 COMPASS Comparative Packaging Assessment, https://design-compass.org/about.gsp (last visited Sept. 25, 2013). 109 Reporting Framework Overview, Global Reporting Initiative, https://www.globalreporting.org/reporting/reporting-framework- overview/Pages/default.aspx (last visited Sept. 25, 2013). 110 See Consumer Goods Forum, A Global Language for Packaging and Sustainability: A Framework and a Measurement System for Our Industry 13-14 (2011), available at http://globalpackaging.mycgforum.com/allfiles/FinalReport_2011.pdf. 111 Introduction – What is the Plastics Scorecard?, Clean Production Action, http://www.cleanproduction.org/Scorecard.Intro.php (last visited Sept. 25, 2013). 112 See European Packaging Waste Management Systems, European Commission DGXI.E.3 16, 27, (2001), available at http:// ec.europa.eu/environment/waste/studies/packaging/epwms.pdf. 113 Megan Short, Taking Back the Trash: Comparing European Extended Producer Responsibility and Take-Back Liability to U.S. Environmental Policy and Attitudes, 37 Vand. J. Transnat’l L. 1217, 1225 (2004) (noting that, in France, more than 90 percent of consumer products utilize the “green dot” symbol on their packaging materials as part of an EPR program). 114 See Recycling Reinvented, http://recycling-reinvented.org/ (last visited Sept. 25, 2013). 115 John Klavitter, Discarded Plastics Distress Albatross Chicks, Open Spaces: A Blog of the U.S. Fish & Wildlife Serv. (Oct. 24, 2012, 10:22 AM), http://www.fws.gov/news/blog/index.cfm/2012/10/24/Discarded-plastics-distress-albatross-chicks. 116 Calculation is based on the estimation that 265 million tons of plastic are produced annually worldwide. Plastics Europe, supra note 8, at 5. 117 Bettina Wassener, A Plan to Go Halfway Around the World, Fueled by Plastic Trash, N.Y. Times, Oct. 15, 2012, http://www.nytimes. com/2012/10/16/business/energy-environment/halfway-around-the-world-fueled-by-plastic-trash.html?pagewanted=all&_r=0.

www.law.ucla.edu/emmett 29 Pritzker Brief No. 5 | October 2013 Emmett Center on Climate Change and the Environment

118 These recommendations are informed by discussions during the Extended Producer Responsibility sessions of the UNEP RONA Marine Litter Workshop for North America: Legal, Policy and Market-Based Approaches to Preventing Marine Litter at the Source, held on December 3, 2012. See generally UNEP RONA Marine Litter Workshop for North America, UNEP Reg’l Off. for N. Am., http://www.rona.unep.org/about_unep_rona/marine_litter/index.html (last visited Sept. 26, 2013). 119 See Short, supra note 113, at 1227. 120 See Retail Bags Report Maps and Related Detailed Lists, Fla. Dept. of Envtl. Prot., http://www.dep.state.fl.us/waste/retailbags/ pages/mapsandlists.htm (last visited Oct. 3, 2013); Jennie R. Romer & Shanna Foley, A Wolf in Sheep's Clothing: The Plastics Industry’s “Public Interest” Role in Legislation and Litigation of Plastic Bag Laws in California, 5 Golden Gate U. Envtl. L.J. 377, 412 (2012). 121 Romer & Foley, supra note 120, at 388-89. 122 See L.A. County Dept. of Public Works, Implementation of the County of Los Angeles Plastic and Paper Carryout Bag Ordinance 1 (2012), available at http://dpw.lacounty.gov/epd/aboutthebag/PDF/Bag Ban Status Nov 2012.pdf. 123 See generally Trash Control in State Water, State Water Resources Control Bd., Cal. Envtl. Prot. Agency, http://www. waterboards.ca.gov/water_issues/programs/trash_control/ (last visited Sept. 24, 2013). 124 These recommendations are informed by discussions during the Extended Producer Responsibility sessions of the UNEP RONA Marine Litter Workshop for North America: Legal, Policy and Market-Based Approaches to Preventing Marine Litter at the Source, held on December 3, 2012. See supra note 118. 125 Cho, The Incentive Program for Fishermen to Collect Marine Debris in Korea, supra note 49, at 416; Honolulu Port Reception Feasibility Study and Derelict Net Recycling Program, NOAA Marine Debris Prog., http://marinedebris.noaa.gov/projects/ hiportrecep.html (last visited Sept. 26, 2013). 126 GhostNets Australia, 2012 Annual Report 9 (2012), available at http://www.ghostnets.com.au/pdf/2012%20ANNUAL%20 REPORT_final_090413.pdf. 127 California Lost Fishing Gear Recovery Project, The SeaDoc Soc’y, http://www.seadocsociety.org/california-lost-fishing-gear- removal-project (last visited Oct. 3, 2013). 128 Nw. Straits Derelict Fishing Gear Removal Prog., http://www.derelictgear.org (last visited Oct. 3, 2013). 129 See, e.g., Remote Sensing of Plastic Debris, AGU Sci. Pol’y Conference, http://spc.agu.org/2013/eposters/eposter/o-05/ (last visited Sept. 26, 2013). 130 NOAA Marine Debris Clearinghouse, http://clearinghouse.marinedebris.noaa.gov/ (last visited Sept. 26, 2013). 131 See, e.g., C.J. Moore, G.L. Lattin, & A.F. Zellers, Quantity and Type of Plastic Debris Flowing from Two Urban Rivers to Coastal Waters and Beaches of Southern California, 11(1) J. Integrated Coastal Zone Mgmt. 65, 72 (2011) (suggesting that 2.3 billion plastic pieces that comprised more than 30 metric tons were removed from two rivers during a rainstorm over the course of 72 hours). 132 See Ocean Conservancy, Tracking Trash: 25 Years of Action for the Ocean 24 (2011), available at http://act.oceanconservancy. org/pdf/Marine_Debris_2011_Report_OC.pdf. 133 Gordon, supra note 2, at 38. 134 Metro. Washington Council of Gov’ts, Plastic Bag Report 2012 Update 11 (2012), available at http://www.mwcog.org/uploads/ pub-documents/p15dWl820121105113857.pdf. 135 Polyhydroxyalkanoate plastic costs 2.25 dollars to 2.75 dollars per pound compared to the 60 cents per pound cost of petroleum- based plastics. See Caroline Winter, Keeping the Sea Safe from Plastic, BusinessWeek.Com (Jan. 5, 2012), http://www. businessweek.com/magazine/keeping-the-sea-safe-from-plastic-01052012.html. 136 See TEU Statistics (Container Counts), The Port of L.A., http://www.portoflosangeles.org/maritime/stats.asp (last visited Sept. 26, 2013). 137 See Trade Statistics, World Shipping Council, http://www.worldshipping.org/about-the-industry/global-trade/trade-statistics. 138 See Resources for California Educators, Cal. Coastal Comm’n, http://www.coastal.ca.gov/publiced/directory/educate.html (last visited Sept. 26, 2013). 139 Operation Clean Sweep, http://www.opcleansweep.org/ (last visited Sept. 26, 2013). 140 Declaration of the Global Plastics Associations for Solutions on Marine Litter (2011), available at http://www.marinedebrissolutions. com/declaration.

www.law.ucla.edu/emmett 30 Pritzker Brief No. 5 | October 2013

Pritzker Environmental Law and Policy Briefs

This policy paper is the fifth of the Pritzker Environmental Law and Policy Briefs. The Pritzker Briefs are published by UCLA School of Law and the Emmett Center on Climate Change and the Environment in conjunction with researchers from a wide range of academic disciplines and the broader environmental law community. They are intended to provide expert analysis to further public dialogue on important issues impacting the environment. About the Emmett Center on Climate Change and the Environment www.law.ucla.edu/emmett Founded in 2008 with a generous gift from Dan A. Emmett and his family, the Emmett Center was established as the nation’s first law school center focused exclusively on climate change. The Emmett Center is dedicated to studying and advancing law and policy solutions to the climate change crisis and to training the next generation of leaders in creating these solutions. The Center works across disciplines to develop and promote research and policy tools useful to decision- makers locally, statewide, nationally and beyond. About the Institute of the Environment and Sustainability (IoES) www.environment.ucla.edu UCLA’s Institute of the Environment and Sustainability (IoES) tackles environmen- tal challenges by reaching across disciplines: physical, life and social sciences, management, economics, law, public health, policy and engineering. We educate the next generation of professional and scientific leadership committed to the health of the Earth, advise businesses and policymakers on sustainability and the environ- ment and inform and encourage community discussion about critical issues impact- ing the planet. Through academic, research and outreach initiatives, IoES will lead the way into a sustainable future. About the Authors Mark Gold is the Associate Director of the UCLA Institute of the Environment and Sustainability. Katie Mika is a recent Ph.D. graduate of the Henry Samueli School of Engineering and Applied Science. Cara Horowitz is the Andrew Sabin Family Foundation Executive Director of the Emmett Center on Climate Change and the Environment at UCLA Law School. Megan Herzog is the Emmett/Frankel Fellow in Environmental Law and Policy at UCLA Law School. Lara Leitner is a J.D. can- didate at UCLA Law School. The authors are grateful to numerous reviewers for invaluable support and advice, including Ellik Adler, Meg Caldwell, Richard G. Hil- dreth, Ljubomir Jeftic, Leila Monroe, Edward Parson, and Alexander Tkalin. We are also indebted to Xiao Zhang for her insights and editing help. These individuals did not necessarily review the document in its entirety. Listing does not imply that an individual or her organization or affiliates endorses the recommendations contained in this document. Any errors are our own.

For information on the Emmett Center or on the Pritzker Brief series, please contact Cara Horowitz at [email protected].

The views expressed in this paper are those of the authors. All rights reserved.

Pritzker Brief No. 5 | October 2013